The opinion of the court was delivered by
Van Syckel, J.
Flanigan, the plaintiff below, was injured by falling from a ladder while engaged in the employment of the said company. This suit was instituted to recover compensation for his injury.
A large number of mechanics and laborers were employed in the work of construction. It was Flanigan’s duty to assist the mechanics who were at work on the top of the boilers in the boiler-room.
The ladder from which he fell was made of two scantlings on which cross-pieces were nailed, and was constructed by employes of the company in the carpenter shop.
[355]*355This ladder was eight or ten inches shorter than the top of the wall against which Flanigan placed it, and, in ascending it, lie stepped upon the second cross-piece from the top of the ladder, when the cross-piece broke from the scantling and he fell to the ground. The wall against which the ladder was placed was a green wall made of brick. When the cross-piece broke, he seized hold of the top of the brick wall, which failed to support him, the brick separating from the wall.
The plaintiff testified that there were good ladders on the premises suitable for the work in which he was engaged, and there was an entire absence of evidence to the contrary. He also testified that shortly before the accident there was a good long ladder there which he had used. He máde no inquiry for that ladder, and, without any effort to procure a safe appliance, he took the one near at hand which was obviously unfit for his purpose.
The testimony of the plaintiff was that the broken ladder was made by employes of the company on the premises, and the company therefore insisted that it was not one of the ladders provided by the company, but that it was a mere temporary makeshift constructed by co-servants of Flanigan, and that for any defect in it the company was not responsible.
But waiving this contention and regarding this as one of the ladders furnished by the company, is the company liable for the alleged injury?
It is admitted that the duty was upon the company to furnish proper ladders for the work in which it was engaged, and to use reasonable care in their inspection. But when proper tools and appliances are provided upon the premises for the use of employes, no authority can be found for imposing upon the employer the further duty of seeing that the servant does not select from among a number of appliances the one not adapted to the work in which for the time he may be occupied.
If such a responsibility is cast upon the master, it would be necessary in his protection to have an alter ego to attend constantly upon every workman in his service, to see that he did not use an implement unfitted for his work.
[356]*356The imposition of such a duty upon the master is without reason, justice or authority to uphold it.
This is not a novel question. It has been directly passed upon by this court so recently as June Term, 1896, in the case of Maher v. Thropp, reported in 30 Vroom 186. The deliverance of this court in that case was “ that if safe and proper tools are supplied by the master, he is not liable for an injury which the servant receives by using, under the direction of the foreman over such servant, a tool not furnished for or adapted safely to the work.”
In this case there was clearly no duty resting upon the employer which he failed to perform. It was apparent to anyone who exercised ordinary care and judgment that it was not safe to ascend a ladder placed against a green brick wall, and which did not reach to the top of the wall, and then to-stand upon the cross-piece next to the top of the ladder. He might reasonably have anticipated that a slip or a misstep or a break from a latent defect would throw him from his position without any means of saving himself except by grasping the green wall, which could furnish him no safe support. If he had selected a ladder of proper length, of which it is admitted there were a number upon the premises, the accident would not have occurred.
No negligence on the part of the company appears in the case, and there was error, therefore, in the refusal of the trial court to nonsuit the plaintiff.
After the motion to nonsuit was denied, the company produced as a witness its chief engineer, who testified that the workmen would often pick up scantling and make a ladder for their own use, which the company tried to prevent, and when discovered would order the workman to go and get a proper ladder. He also testified that the ladder from which Flanigan fell was not one of the ladders provided by the company, but that it was made by co-servants of Flanigan.
Thereupon the counsel of the company requested the trial court to charge the jury “ that the defendant is not liable for the negligence of one of the plaintiff’s co-servants, and if the [357]*357jury is satisfied that the ladder was defective, and that its defective condition was due to the negligent construction of the men who constructed that ladder, the plaintiff is not entitled to recover.”
In response to this request the court charged the jury as follows, and refused to charge otherwise: “ It is a question entirely for you, whether reasonable care was exercised on this occasion in the construction of the ladder that this man got. Where it did come from seems to be a little doubtful. One of the witnesses thinks it was a ladder roughly put together by some of the men, but another witness, called by the defendant, says it was the ordinary ladder furnished by the defendant. However that may be, I charge you that the plaintiff had a right, after that ladder had been in position there, under the eyes of whoever was in charge of that work, having been there several days, and being necessary for him to use to get on top of the boilers, or rather that it is a fair matter to leave to you to decide whether he had not a right to assume that his employer furnished the ladder. I do not say as matter of law that you must find that the employer did furnish it; you may find that it was not so; that it was a makeshift; that some of the workmen had made it, and that the plaintiff ought to have known it. It is for you to say whether you think, under all the circumstances of the case, he was justified in thinking that it had been furnished by his employer, and for you to determine whether it had or not been so furnished. If he knew, or ought to have known, the condition of the ladder at the time of the occurrence of the accident, he cannot recover, even though the jury should fin'd that the ladder was defective.”
To this charge and refusal to charge exception was taken, and error is assigned thereon.
In my judgment, the company was entitled to have the jury specifically instructed that if the ladder was made by the co-servants of Flanigan, and was not one of the ladders furnished by the company, the injury was due to the negligence of a co-servant, for which no action would lie against the master.
[358]*358This doctrine is too well settled to require citation of authorities in its support. The only inquiry is, was the request, of the company substantially and fairly charged, so that the company had the benefit of it in the consideration by the jury of the evidence in the cause?
In my judgment the trial judge qualified the legal rule in such a way as to deprive the company of the benefit of it.
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The opinion of the court was delivered by
Van Syckel, J.
Flanigan, the plaintiff below, was injured by falling from a ladder while engaged in the employment of the said company. This suit was instituted to recover compensation for his injury.
A large number of mechanics and laborers were employed in the work of construction. It was Flanigan’s duty to assist the mechanics who were at work on the top of the boilers in the boiler-room.
The ladder from which he fell was made of two scantlings on which cross-pieces were nailed, and was constructed by employes of the company in the carpenter shop.
[355]*355This ladder was eight or ten inches shorter than the top of the wall against which Flanigan placed it, and, in ascending it, lie stepped upon the second cross-piece from the top of the ladder, when the cross-piece broke from the scantling and he fell to the ground. The wall against which the ladder was placed was a green wall made of brick. When the cross-piece broke, he seized hold of the top of the brick wall, which failed to support him, the brick separating from the wall.
The plaintiff testified that there were good ladders on the premises suitable for the work in which he was engaged, and there was an entire absence of evidence to the contrary. He also testified that shortly before the accident there was a good long ladder there which he had used. He máde no inquiry for that ladder, and, without any effort to procure a safe appliance, he took the one near at hand which was obviously unfit for his purpose.
The testimony of the plaintiff was that the broken ladder was made by employes of the company on the premises, and the company therefore insisted that it was not one of the ladders provided by the company, but that it was a mere temporary makeshift constructed by co-servants of Flanigan, and that for any defect in it the company was not responsible.
But waiving this contention and regarding this as one of the ladders furnished by the company, is the company liable for the alleged injury?
It is admitted that the duty was upon the company to furnish proper ladders for the work in which it was engaged, and to use reasonable care in their inspection. But when proper tools and appliances are provided upon the premises for the use of employes, no authority can be found for imposing upon the employer the further duty of seeing that the servant does not select from among a number of appliances the one not adapted to the work in which for the time he may be occupied.
If such a responsibility is cast upon the master, it would be necessary in his protection to have an alter ego to attend constantly upon every workman in his service, to see that he did not use an implement unfitted for his work.
[356]*356The imposition of such a duty upon the master is without reason, justice or authority to uphold it.
This is not a novel question. It has been directly passed upon by this court so recently as June Term, 1896, in the case of Maher v. Thropp, reported in 30 Vroom 186. The deliverance of this court in that case was “ that if safe and proper tools are supplied by the master, he is not liable for an injury which the servant receives by using, under the direction of the foreman over such servant, a tool not furnished for or adapted safely to the work.”
In this case there was clearly no duty resting upon the employer which he failed to perform. It was apparent to anyone who exercised ordinary care and judgment that it was not safe to ascend a ladder placed against a green brick wall, and which did not reach to the top of the wall, and then to-stand upon the cross-piece next to the top of the ladder. He might reasonably have anticipated that a slip or a misstep or a break from a latent defect would throw him from his position without any means of saving himself except by grasping the green wall, which could furnish him no safe support. If he had selected a ladder of proper length, of which it is admitted there were a number upon the premises, the accident would not have occurred.
No negligence on the part of the company appears in the case, and there was error, therefore, in the refusal of the trial court to nonsuit the plaintiff.
After the motion to nonsuit was denied, the company produced as a witness its chief engineer, who testified that the workmen would often pick up scantling and make a ladder for their own use, which the company tried to prevent, and when discovered would order the workman to go and get a proper ladder. He also testified that the ladder from which Flanigan fell was not one of the ladders provided by the company, but that it was made by co-servants of Flanigan.
Thereupon the counsel of the company requested the trial court to charge the jury “ that the defendant is not liable for the negligence of one of the plaintiff’s co-servants, and if the [357]*357jury is satisfied that the ladder was defective, and that its defective condition was due to the negligent construction of the men who constructed that ladder, the plaintiff is not entitled to recover.”
In response to this request the court charged the jury as follows, and refused to charge otherwise: “ It is a question entirely for you, whether reasonable care was exercised on this occasion in the construction of the ladder that this man got. Where it did come from seems to be a little doubtful. One of the witnesses thinks it was a ladder roughly put together by some of the men, but another witness, called by the defendant, says it was the ordinary ladder furnished by the defendant. However that may be, I charge you that the plaintiff had a right, after that ladder had been in position there, under the eyes of whoever was in charge of that work, having been there several days, and being necessary for him to use to get on top of the boilers, or rather that it is a fair matter to leave to you to decide whether he had not a right to assume that his employer furnished the ladder. I do not say as matter of law that you must find that the employer did furnish it; you may find that it was not so; that it was a makeshift; that some of the workmen had made it, and that the plaintiff ought to have known it. It is for you to say whether you think, under all the circumstances of the case, he was justified in thinking that it had been furnished by his employer, and for you to determine whether it had or not been so furnished. If he knew, or ought to have known, the condition of the ladder at the time of the occurrence of the accident, he cannot recover, even though the jury should fin'd that the ladder was defective.”
To this charge and refusal to charge exception was taken, and error is assigned thereon.
In my judgment, the company was entitled to have the jury specifically instructed that if the ladder was made by the co-servants of Flanigan, and was not one of the ladders furnished by the company, the injury was due to the negligence of a co-servant, for which no action would lie against the master.
[358]*358This doctrine is too well settled to require citation of authorities in its support. The only inquiry is, was the request, of the company substantially and fairly charged, so that the company had the benefit of it in the consideration by the jury of the evidence in the cause?
In my judgment the trial judge qualified the legal rule in such a way as to deprive the company of the benefit of it.
. In the charge upon this subject above quoted the court said : “ It is a fair matter to leave to you to decide whether he [the, plaintiff] had not a right to .assume that his employer -furnished the ladder.” .And again the co.urt said : “ It is for you to say whether you think, under all the circumstances of the case, he [the plaintiff] was justified .in thinking that it had been furnished by his employer, and for you to determine whether it had or not been so furnished.”
Under these instructions, although the jury found that the company, had provided safe and suitable ladders on the premises for their workmen, and that the ladder which broke was a temporary makeshift, constructed by Flanigan’s fellow-workmen without the knowledge of the company, yet the jury might hold the company liable for Flanigan’s mishap, if he had reason to believe that the ladder was furnished by the company.
This qualification of the legal rule is in direct conflict with the case of Maher v. Thropp, supra. In that case the workman who was injured used an appliance for his work by the express order of the foreman who was over him. He had good reason, therefore, to believe that the implements he used were furnished by the master, but this court, bn review of that case, said that Maher was properly nonsuited in the trial court.
It was wholly immaterial what Flanigan believed in this regard; if his. injury was caused by the negligence of a fellow-workman, he had no right of action against his employ ér.
It was the negligent act of the co-servant which relieved the company from responsibility, and not the knowledge on [359]*359the part of Flanigan that there was negligence on the part of his co-servant.
In this respect there was also error in the charge of the trial court, for which the judgment below should be reversed.